SAROJINI AMMA Vs. DAKSHAYANI AMMA

JUDGEMENT

(1.) Heard.

(2.) O. S. No. 158 of 1992 pending before the Munsiff's Court, Wadakkancherry is filed by respondents 1 and 2 for a permanent prohibitory injunction to restrain the petitioners herein from causing destruction to or alteration of plaint B Schedule property described as a pathway as also for a mandatory injunction to restore plaint C schedule property described as a Chal to its original position and for other incidental reliefs. According to them plaint B schedule pathway leading to plaint A schedule property has been in their possession and used from time immemorial for ingress and egress and that the petitioners have no exclusive right over the same. They also alleged that plaint C schedule water-chal situated next to the PWD road was being used for draining water and that the petitioners had destroyed it. In the written statement filed by the petitioners," they denied the allegations and also made a counter claim against the respondents, who are the plaintiffs as also respondents 3 and 4, the R.D.O. and Assistant Executive Engineer, PWD (Roads). If was stated that plaint B schedule is not a pathway as described but a water-chal for draining water and that respondents 1 and 2 with the help of respondents 3 and 4 filled it up in March, 1992, that has resulted in flooding their property situated next to the puramboke land. It was further contended that complaint was made to the R. D. O. against the respondents and eventually on the intervention of the Panchayat President, they agreed to restore plaint B schedule water-chal before the onset of the monsoon. But without abiding by and suppressing the agreement the suit was filed without bona fides. Petitioners also claimed a right to use plaint B schedule water-chal by way of easement by prescription and they therefore prayed for a declaration of their right and for a mandatory injunction in regard to plaint B schedule item and also for a prohibitory injunction with respect to plaint C schedule property. Respondents 3 and 4 were impleaded in the counter claim since they were the custodians of the puramboke property. Summons was issued to them in the counter claim and in the statement filed under O.8 R.9 C. P. C., it was stated that the claim against them was not maintainable. The court below considered the maintainability of the counterclaim under issue No. 1 and observed that it cannot be canvassed against persons, who are not parties to the suit - against total strangers to the suit - and accordingly, found that the counter claim was not maintainable as against respondents 3 and 4, whose names were ordered to be struck out from the party array by order dt. 25.1.1994, which is under challenge in this revision.

(3.) According to the petitioners, since the counterclaim has to be treated as plaint in a cross - suit it is governed by the rules applicable to a plaint. On the wording of R.6 A of O.8 C. P. C. "any right or claim in respect of a cause of action accruing to the defendant against the plaint either before or after the filing of the suit but before the defendant has delivered his defence or before the time limited for delivering his defence has expired" can be set up by way of counter claim and this would induce rights that have accrued incidentally against a third party also. It may sometimes become necessary that adjudication of the counter claim made against the plaintiff may have to be done in the presence of a third party to give a finality to the controversy. Even otherwise, impleadment of respondents 3 and 4 could be justified under the comprehensive provision or O.I R.10 C.P.C. There are specific allegations against respondents 3 and 4, who had joined hands with respondents 1 and 2 to deprive the rights that have accrued to the petitioners over plaint B and C schedule properties and therefore they are necessary parties to the counter claim, as otherwise its adjudication would be incomplete and ineffectual. It is submitted that the court below has misconstrued the law and its order is untenable and has to be set aside.